Fish v. Rutland Railroad

Cochrane, P. J.:

The main question is whether the claim is barred by the failure to file notice thereof within one year after the accident. We may disregard the compensation agreement and the approval thereof by the State Industrial Board more than five years after it was' made and nearly eight months after the award was made. In the year 1919 the Legislature added to section 20-a as it then existed of the Workmen’s Compensation Law this sentence: “ No case in which an advance payment is made shall be barred by the failure of the employee to file a claim, and the Commission may at any time order a hearing on any such case in the same manner as though a claim for "compensation had been filed.” In the year 1922 the Legislature struck from the statute as a separate section all of said section 20-a, but at the same time in substantially the same language it added the sentence above quoted to section 28 where it still remains. On November 1, 1918, the appellant made to the claimant an advance payment of thirty-five dollars under the said agreement. The insertion in section 20-a of the statute in the year 1919 of the provision above quoted was made by chapter 629 of the Laws of that year which became effective May 14, 1919, and before the expiration of one year after the accident on September 26, 1918, within which time the claimant might have filed his notice of claim. His right to file the same having existed when the said legislation became effective such legislation excused the subsequent filing thereof. Degaglio v. Bradley Contracting Co. (184 App. Div. 243) and Matter of Twonko v. Rome Brass & Copper Co. (224 N. Y. 263), cited by appellant, were decided before said legislation. It was not the compensation agreement but the payment of the thirty-five dollars and the above-mentioned legislation which made it unnecessary to file the notice of claim.

It is further urged by the appellant that the accident occurred *305while the railroad was under Federal control (Act of Congress, approved March 21, 1918, chap. 25), and that the proper remedy of the claimant was against the Director-General of Railroads. That contention was not insisted on before the State Industrial Board prior to the award although specific written objections to an award were made by appellant. It is now too late to urge this point for the first time.

The award should be affirmed, with costs to the State Industrial Board.

Award .unanimously affirmed, with costs in favor of the State Industrial Board.